Indian nationals who seek employment-based immigrant visas in the Second Preference EB-2 category (advanced degree or bachelor's degree plus five years of work experience) now wait five years or more for this visa, while those seeking the Third Preference EB-3 category visa for bachelor's degree holders wait more than 12 years.

Under the current certification process, a young IT professional from India who has a four-year degree and two years of work experience will wait a minimum of 15 years. Many well-qualified professionals will not want to wait for this length of time, as it creates great hardship: it interferes with putting down roots in the United States (ie, mortgage, children, school and, to a certain extent, career growth), and there is a great deal of uncertainty created by policy and programme changes in US immigration law.

The Fairness for High-Skilled Immigrants Act 2011 was recently passed in the House of Representatives by 389 to 15.(1) The Senate will likely pass it and the president is expected to sign it.

This amendment will eliminate the percentage quota for large countries such as India and will place Indian nationals in the same worldwide waiting period as applicants from other countries. This is a disadvantage for applicants from other countries – it lengthens their waiting time somewhat – but good news for those from China and India, as it will considerably shorten their backlogs.

The current system limits any country's percentage of employment-based visas to a small percentage of the worldwide total allotment. Immigrant visas are subject to a per-country limit set at 7% of the total annual number of family and employment-based visas, or 25,620 per country. In turn, employment-based visas are divided proportionally among the preference categories at 28.6% each in the top three employment-creation categories, with additional numbers available for other workers, special immigrants and EB-5 investor immigrants.

However, the present system already benefits Indian and Chinese people more than the above facts might suggest. A total of 148,000 employment-based visas were issued in 2010 worldwide; 7% of that is a mere 10,360. The catch is that unused visas in the EB-1 category from the same country get handed down, and unused visas from other countries are redistributed. This redistribution of unused visas, particularly from the worldwide EB-1 category (which is massively under-subscribed), made it possible for approximately 31,000 Indians to obtain employment-based visas last year.

The total number of employment-based immigrant visas issued in 2010 was 148,000 – of which 41,000 were first preference, 54,000 were second preference and 40,000 were third preference, with the remainder as other workers. Of this total, 31,000 employment-based visas were issued to persons from India and 18,000 to persons from China.

In conclusion, the elimination of the 7% per-country limit will make some difference in terms of additional visas and reduced waiting time for Indians, but not as much as some may expect.

For further information on this topic please contact Rami D Fakhoury at Fakhoury Law Group PC by telephone (+1 248 643 4900), fax (+1 248 643 4907) or email ([email protected]).


(1) For further details please see